Application by The Australian Retailers Association - [2024] FWCFB 251

[2024] FWCFB 251

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s 160—Variation of modern award to remove ambiguity or uncertainty or correct error

Application by The Australian Retailers Association

(AM2024/9)

GENERAL RETAIL INDUSTRY AWARD 2020

[MA000004]

JUSTICE HATCHER, PRESIDENT

DEPUTY PRESIDENT CLANCY

COMMISSIONER MATHESON

SYDNEY, 7 MAY 2024

Application to vary the General Retail Industry Award 2020 – proposed variation C – clause 16.6(b) – clause ambiguous and uncertain – award varied – rate of 200 per cent to apply to employee’s minimum hourly rate.

Introduction

The Australian Retailers Association (ARA) has made an application under ss 158(1) and 160(2)(c) of the Fair Work Act 2009 (Cth) (FW Act) to vary several provisions of the General Retail Industry Award 2020[1] (Retail Award). The ARA has set out 17 proposed variations marked A through Q in its application. Variation E has already been determined by a Full Bench of this Commission together with matter AM2023/17.[2]

The ARA’s proposed variation C concerns clause 16.6 of the Retail Award, which currently provides:

16.6 Breaks between work periods

(a)An employee must have a minimum break of 12 hours between when the employee finishes work on one day and starts work on the next.

(b)If an employee starts work again without having had 12 hours off work, the employer must pay the employee at the rate of 200% of the rate they would be entitled to until the employee has a break of 12 consecutive hours.

(c)The employee must not suffer any loss of pay for ordinary hours not worked during the period of a break required by clause 16.6.

(d)The employer and an individual employee or a group of employees may agree that clause 16.6 is to have effect as if it provided for a minimum break of 10 hours.

Proposed variation C would alter clause 16.6 in two respects:

(a)Clause 16.6(b) would be varied to clarify that the prescribed penalty rate is 200 per cent of the minimum hourly rate by providing as follows:

If an employee starts work again without having had 12 hours off work, the employer must pay the employee for each hour worked at the rate of 200% of the employee’s minimum hourly rate otherwise applicable under clause 17 – Minimum rates until the employee has a break of 12 consecutive hours.

(b)The references to 12 hours in paragraphs (a) and (b) of clause 16.6 would be replaced with references to 10 hours, and paragraph (d) would be deleted.

This decision concerns only the first aspect of proposed variation C. The second aspect will be dealt with at a later time together with other proposed variations in the ARA’s application which remain contested. The variation we are dealing with here is supported by the National Retail Association (NRA) and the Australian Industry Group (AiG) and opposed by the Shop, Distributive and Allied Employees’ Association (SDA), the Australian Workers’ Union (AWU) and Retail and Fast Food Workers Union Incorporated (RFFWU Inc).

The ARA seeks…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Application by The Australian Retailers Association

Details

AGLC: Application by The Australian Retailers Association [2024] FWCFB 251
Case: [2024] FWCFB 251
Decision Date: 7 MAY 2024

CaseChat Overview and Summary

The Australian Retailers Association applied to the Fair Work Commission to vary the General Retail Industry Award 2020. The Association sought to clarify clause 16.6(b) of the proposed variation, which they considered ambiguous and uncertain. The matter was heard in the Fair Work Commission, the body responsible for regulating Australia's workplace relations system.

The legal issue before the Commission was whether clause 16.6(b) of the proposed variation to the award was ambiguous or uncertain. If found to be ambiguous or uncertain, the clause would need to be clarified. The Association argued that the clause was ambiguous as it did not clearly specify whether the 200 per cent rate applied to the employee's minimum hourly rate or to their total earnings. This ambiguity could lead to different interpretations and potential disputes between employers and employees.

The Fair Work Commission found that clause 16.6(b) was indeed ambiguous and uncertain. The Commission clarified that the 200 per cent rate would apply to the employee's minimum hourly rate. This decision ensured consistency and predictability in the interpretation of the award, avoiding potential disputes and ensuring that employees received the correct penalty rate for their work. The Commission varied the award to reflect this clarification.

The Fair Work Commission varied the General Retail Industry Award 2020 to ensure that the 200 per cent rate applied to the employee's minimum hourly rate. This decision provided clarity and resolved the ambiguity in clause 16.6(b) of the proposed variation.

Orders